Chinese Review of International Law(6-2020)




On the Extradition of a Third State National under International Law


Li Yongsheng


Abstract: This article explores the issue of extradition of a third State national,through researching academic teachings,relevant practice of extradition treaties,and relevant practice of States’ extradition legislation,as well as applicable international law. It concludes that the issue under discussion is not a settled issue. There is no consensus among academic teachings on this issue. It does have or once did have quite a few extradition treaties and relevant domestic laws in practice which have due regard to the rights of the third State. Therefore,it enjoys no support of general practice of extradition treaties nor domestic laws that the parties of the extradition treaties could go ahead with extraditing of a third State national without considering the rights of the third State,nor does it have the support of international law in theory. It is thus premature to say this has been established as a rule of customary international law. The third State, whose national being subject to extradition between other States or parties, is entitled to certain rights pursuant to applicable customary international law and treaty law. This article endeavors to identify these rights and provides some recommendations to the third States for dealing with the issue.

Keywords: International Law,Extradition,A Third State National,The Rights of the Third State


Obligations erga omnes and Its Application in Contentious Proceedings before the International Court of Justice


Liao Xuexia


Abstract:In November 2019, The Gambia initiated proceedings against Myanmar before the International Court of Justice (ICJ) and claimed the State responsibility of Myanmar for its violation of the Genocide Convention. This case was the first stance in which a State claims the State responsibility of another on the basis of the concept of obligations erga omnes, without proving the Applicant is an injured State or a State whose interests are specially affected. Since its introduction into the jurisprudence, the concept of obligations erga omnes has raised a considerable amount of controversies, in particular with respect to the potential of States invoking other States’ responsibilities in the absence of a direct link with the subject-matter of the dispute. Through a comprehensive survey of the relevant judicial decisions, this article argues that the ICJ has not yet clarified the scope or conditions for application of the concept of erga omnes and it highlights the implications of this concept for abuse of procedure.

Keywords:Obligations erga omnes, The International Court of Justice, Jurisdiction, Standing, “The Gambia v. Myanmar”


Extraterritorial Jurisdiction of Transnational Commercial Bribery in the Perspective of Judicial Practice


Ran Gang


Abstract:In accordance with United Nations Convention Against Corruption and Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the parties shall establish reasonable extraterritorial jurisdiction over transnational commercial bribery cases in order to curb international bribery. These jurisdiction principles originated from territorial jurisdiction, nationality jurisdiction and protective jurisdiction in international law, and the jurisdiction could be divided into limited mode and comprehensive mode in practice. With rapid expansion of extraterritorial rights, conflict of jurisdiction will inevitably occur, so it is required to limit and coordinate extraterritorial jurisdiction among different states. As a global economic and trade power, China shall establish its treaty-based extraterritorial jurisdiction and clarify applicable rules of transnational commercial bribery.

Keywords: Transnational Commercial Bribery, Legal Basis, Extraterritorial Jurisdiction Mode, International Coordination, Suggestions


Progress of Work in the Commission on the Limits of the Continental Shelf and Hot Issues on the Extended Continental Shelf Delineation Worldwide


Fang Yinxia and Yin Jie


Abstract:The Commission on the Limits of the Continental Shelf is an international organization established in accordance with the United Nations Convention on the Law of the Sea. Its recommendation of submission by coastal States is an important practice in the extended continental shelf delineation. Follow the work progress of the Commission on the Limits of the Continental Shelf closely, and summarize the latest developments in the theory and practice of the continental shelf regime timely, which will help to promote the in-depth research and development of the delimitation of the continental shelf in China. This paper details the progress in the submission’s recommendation of the Commission on the Limits of the Continental Shelf in 2019, the developments in the submission of the outer continental shelf worldwide, the developments in hot issues such as the continental shelf delineation of the Arctic Ocean and the South China Sea and the new challenges for China, which will provide references for the research on our extended continental shelf delineation and the effective response to other countries Submissions.

Keywords:Commission on the Limits of the Continental Shelf, Extended Continental Shelf Delineation, Submission by Malaysia, South China Sea, Arctic Ocean


A Comment on the EU’s White Paper on Foreign Subsidies: Its Implications to Foreign Investment Protection


Ye Bin


Abstract:In June 2020, the European Commission issued a White Paper on Foreign Subsidies which proposes new instruments to address socalled “distortive effects” caused by foreign subsidies within the internal market. The White Paper provides at least three options to empower the European Commission and national supervisory authorities to approve or investigate foreign investor or investment in the EU, including their operation, acquisition, biding to public procurement and the use of EU funds, on ground of leveling the playing field. From the perspective of the EU and its Member States’ bilateral investment treaties, the proposed instruments pose grave concerns on the EU’s obligations to protect foreign investor and investment, especially its international commitment to provide national treatment to foreign investment and not to introduce a measure which constitutes indirect expropriation unless designed to protect legitimate public welfare or public policy objectives in the rare circumstance. The article proposes to confine the space to interpret the terms of the right to regulate and the legitimate public policy exceptions to expropriation in the ongoing negotiation of the China-EU Bilateral Investment Agreement, and also recommends Chinese government to considerate a regulatory mechanism to address domestic subsidies.

Keywords:EU Law, Foreign Subsidy, State Aid, National Treatment, Investment Protection


Re-understanding of the Applicable System of Mandatory Provisions


Shen Juan


Abstract:The application of mandatory provisions is an important system of private international law, but it is misunderstood a lot in the literature, which adversely affects legislation and judicial practice. It is a misunderstanding that mandatory provisions can be directly applied to foreign relations without reference to the choice of law rules, which will affect the perfection of unilateral choice of law rules that invoke mandatory provisions. Unilateral choice of law rules is the legal basis on which mandatory provisions could be applied to foreign-related relations, and it is indispensable. The application of domestic mandatory provisions in foreign-related relations is a special requirement under universalism, so the scope of application of mandatory provisions should not be unduly expanded but should be restricted. The application of foreign mandatory provisions should be distinguished from evading the determination of the validity of foreign mandatory provisions and violations of domestic public policy. Therefore, indirect application of foreign mandatory provisions should not belong to the content of the application system of the foreign mandatory provisions, and only direct application of foreign mandatory provisions is the application of foreign mandatory provisions.

Keywords:Mandatory Provisions, Basis of Application, Scope of Application, Public Policy, Evasion of Law


The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements


Timothy Schnabel (Translated by Wang Hui, Proofread by Zhang Yan)


Abstract:Singapore Convention is an important treaty in the field of international dispute resolution. The Singapore Convention establishes a global regime for the enforcement of mediated settlement. Timothy Schnabel, author of the article, represents U. S. for the negotiation and deliberation of this milestone Convention. From the perspective of a delegate, this article firstly shows the purpose of the Convention, which is to promote mediation in the global community via a newly formed treaty. Then, this article shows the course of debate in UNCITRAL, which reviews how delegates gradually seek major common grounds while shelving the differences. After that, this article reveals those non-textual issues resolved in the negotiations. For instance, whether to develop both a Convention and a model law simultaneously, how to accord the status of mediated settlements under the Convention, and whether the Convention applies to non-pecuniary remedies. Lastly and most importantly, this article, by referring to travaux préparatoires and treaty text, conducts a comprehensive annotation on the treaty. Topics covered include without limitation the proper interpretation and understanding of “mediated” “international” “commercial” “exclusions from scope” “the obligation of parties to the Convention” and “grounds for refusal”

Keywords:Singapore Convention, Mediation, Enforcement, Settlement Agreement, UNCITRAL